Albuquerque Court Takes the Driving out of Driving While Intoxicated

Most people are surprised to learn they can be charged with DWI/DUI even when below the limits of .08. In fact, under the limits DWI charges in Albuquerque are quite common. In fact, people are arrested for DWI even when they are not driving.

A recent story in the Albuquerque Journal told the story of a Vietnam veteran, Fidencio Francia, who was arrested for DWI despite the fact that he never started his car. Instead, he knew that he had had too much to drink so he wisely chose not to drive. Rather than drive, he chose to sleep it off in his car. He was arrested and charged for DWI for sleeping in his car after consuming alcohol.

Albuquerque District Attorneys argue that such behavior puts the city at risk. They argue that folks like Mr. Francia are not using the car as a shelter but instead are in control of a “4000 pound bullet.” The judge in the case, Judge Fitzwater argued that the law is well settled that one does not have to drive to be convicted of Driving While Intoxicated. Counter-intuitive, is it not?

In fact, the New Mexico Court of Appeals has ruled that it is unnecessary to drive to get a DWI/DUI. The court found that one need only be control of the car. The definition of control is very loose. In State v. Sims, the Court found that the person was in control of the car even though the keys were not even in the ignition, but in the passenger seat. And the defendant was asleep. Yet he was still in control of the car and presumably a threat to the public with his 4000 pound bullet.

What is the lesson here? Don‘t drink, if you do drink, don‘t get near a car, if it is freezing outside, you have to make a hard choice between dying in the cold, driving drunk, or getting a DWI for sleeping in your car.

There is no reason or rationality in the prosecution of DWI/DUI in Albuquerque. The policy of prosecuting people for not driving drunk is certain to end in disastrous consequences as some will decide the risk of driving drunk is no worse than the risk of not driving drunk.

The only real question is when such a disaster will strike and whether the District Attorney and the Albuquerque DWI Unit will accept responsibility for the ill-advised policy of prosecuting people for not driving drunk. Meeting DWI quotas is I suppose far more important that actual public safety.

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